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State Speech and Political Liberalism


Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each.Their title, Ordered Liberty, is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free speech cases that are tough because speech causes serious harm, not because it doesnot, and abortion rights jurisprudence. Fleming and McClain have much to say about what it means to exercise rights responsibly, but little to say about the state\u27s claims of order in the sense of preventing or redressing serious harm to others

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This paper was published in Fordham University School of Law.

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